Employment Tribunal Fee Refund Scheme Launched

Following the decision of the Supreme Court that the introduction of Employment Tribunal fees in July 2013 was unlawful (R on the application of UNISON v Lord Chancellor [2017] UKSC 51), the Ministry of Justice announced that the Government would cease charging fees immediately and take steps to refund payments made since their introduction – no easy task.

The first stage of the ET fee refund scheme has now been announced. Up to around 1,000 people will now be contacted individually and given the chance to complete applications before the full scheme is opened up in the coming weeks. The Government is also working with trade unions that have supported large multiple claims potentially involving hundreds of claimants.

Successful applicants to the scheme will not only be refunded the fee amount but will also be paid interest at a rate of 0.5 per cent, calculated from the date of the original payment up until the refund date.

This opening phase of the refund scheme will last for around four weeks. Further details, including information on how it can be accessed, will be made available when the scheme is rolled out fully.

Further information can be found here.

High Court Bans Proposed Royal Mail Strike as a Breach of Contract

Trade unions have a statutory right to call their members out on strike so long as the correct procedures are followed. However, as one case concerning proposed industrial action by more than 100,000 Royal Mail workers showed, that right can be cut down by agreement.

The Communication Workers Union was in dispute with Royal Mail Group Ltd. in respect of a number of matters, including pensions, pay and working hours. A ballot of the union’s members yielded a 73.7 per cent turnout and 89.1 per cent of those who voted cast their ballots in favour of a three-day strike. There was no dispute that the union had complied with the procedural requirements of the Trade Union and Labour Relations (Consolidation) Act 1992.

However, the union and the company had reached a collective agreement in 2014 which contained detailed provisions as to what was to happen in the event of a dispute. Amongst other things, the agreement – which was expressed to be a legally enforceable contract – provided that disputes were to be referred to external mediators, appointed by Acas, and that industrial action could not be taken before such resolution measures had been exhausted.

In ruling the proposed strike unlawful and granting an injunction to restrain it, the High Court rejected the union’s arguments that the company’s reliance on the agreement was opportunistic and not in good faith. It had been entitled to refer the dispute to external mediation at the time it did and the union was bound not to call a strike until that process had been completed.

The Court noted that, from the company’s point of view, damages would not be an adequate remedy were the strike permitted to go ahead. The proposed stoppage would have a very damaging impact on both the company and its customers, would result in the loss of millions of pounds in revenue and would harm the company’s reputation for reliability in a highly competitive market.

Employer Not Liable for Office Worker’s Chair Prank

If a negligent worker causes injury in the course of his job, compensation is generally payable by his or her employer under the principle of vicarious liability. However, as one case concerning an office prank showed, that does not apply where the worker concerned is on a frolic of his own.

A woman suffered a serious injury to her lower back when a colleague pulled her chair away just as she was about to sit on it. Lawyers on her behalf sued the local authority for which both of them worked and damages were agreed at £58,000, subject to the employer being found liable.

In dismissing her claim, a judge noted that the colleague got on well with the woman and normally behaved professionally. There was no culture of pranks in the office and he had not acted maliciously. With little more than a flick of his hand, he had moved the chair as a joke on the spur of the moment. His act of pure folly was carried out in an entirely private capacity and was unconnected to his work.

The New Data Protection Bill

The Data Protection Bill 2017 was introduced to the House of Lords on 13 September 2017. The Bill, which is due to come into force in May 2018, will replace the Data Protection Act 1998 and incorporate the General Data Protection Regulation into national law so that the rules continue to apply after the UK has left the European Union.

The aims of the Bill are to:

  • make UK data protection laws fit for the digital age in which an ever increasing amount of data is processed;
  • give individuals greater control over their personal data; and
  • ensure that the UK is prepared for the future after Brexit.

The Department for Digital, Culture, Media and Sport has published the following factsheets explaining various aspects of the Bill:

  • An Overview of the Bill;
  • General Processing;
  • Law Enforcement Processing;
  • National Security Processing; and
  • Information Commissioner and Enforcement.

Under the revised legislation, the maximum penalty for regulatory breaches will increase from £500,000 to £18 million or 4 per cent of the undertaking’s total worldwide turnover in the preceding financial year – whichever is higher.

The text of the Bill and updates on its progress through Parliament can be found at https://services.parliament.uk/bills/2017-19/dataprotection.html.

These articles are provided for general interest and information only. They do not constitute legal advice. Whilst every effort is made to ensure that the content accurately reflects the law in England as at the date of its transmission, no liability is accepted for any loss or damage arising from any act or omission resulting from any information contained herein.

Strike Ballots Test Case – Trade Unions Don’t Have To Give Precise Dates

Trade unions have long been required to ballot members before calling a strike, but only recently have they also been required to indicate on voting papers the period, or periods, during which industrial action is proposed. That provision came under the spotlight in a High Court test case concerning a planned strike by airline pilots (Thomas Cook Airlines Limited v British Airline Pilots Association).

The dispute between the pilots and Thomas Cook Airlines Limited in respect of pay and conditions was acknowledged to be a trade dispute within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Following a ballot held by their trade union, a majority of affected pilots voted in favour of strike action.

In seeking an injunction to halt the strike, Thomas Cook argued that the strict terms of TULRCA had not been complied with. In particular, the airline pointed to Section 229(2D), which was incorporated into TULRCA by the Trade Union Act 2016 and came into force in March 2017.

Section 229(2D), which had not been considered by a court before, requires that voting papers used in such ballots must indicate the period or periods within which industrial action is expected to take place. The papers used in the instant case informed pilots that ‘discontinuous’ strike action was proposed on ‘dates to be announced’ between the period from 8 September 2017 to 18 February 2018. The airline argued that that wording was not in accordance with the provision, that the ballot was thus invalid and that no strike action could lawfully be taken.

In refusing to grant the order sought, however, the Court found that it was more likely than not that the ballot papers complied with the provision in Section 229(2D). This had to be read in the context of all the uncertainties inherent in trade disputes and it appeared unlikely that Parliament had intended to require trade unions to give further details or to specify precise dates. It was sufficient for the voting papers to indicate the period during which the strike action was expected to take place and, in the circumstances, those who took part in the ballot would have understood what they were being asked to vote for.

Prison Officer Wins Substantial Damages for Psychiatric Injuries

Workplace disciplinary proceedings can be extremely stressful and it is foreseeable that dragging them out unnecessarily can not only be a breach of the Advisory, Conciliation and Arbitration Service Code of Practice on Disciplinary and Grievance Procedures but can also cause psychiatric harm to employees. In one case, a prison officer who had serious allegations of sexual misconduct hanging over him for many months won the right to substantial damages (Marsh v Ministry of Justice).

The middle-aged officer had been caught up in a lengthy police inquiry into alleged inappropriate sexual contact between staff and female inmates at the prison where he worked. Police officers had searched his home and he was suspended from his post. However, no criminal charges were brought against him.

Following the decision not to prosecute him, his suspension was maintained for a further 20 months before he was finally exonerated by a disciplinary panel. He was invited to return to work but, by that time, his mental health had suffered so badly that he was unable to do so. He was eventually dismissed on ill health grounds.

In upholding his damages claim against the Ministry of Justice, the High Court was not satisfied that there had been any sexual misbehaviour on his part. Claims that he had brought drugs and alcohol into the prison were also rejected. In short, he had done nothing that might have justified his dismissal on misconduct grounds.

The Court accepted that there had been no breach of duty in the initial decision to suspend him. However, the disciplinary process had been unreasonably prolonged on the basis that it could not continue until the criminal prosecution of colleagues, including the prison’s governor, was complete. But for that delay, he would have recovered from his psychiatric injury and been able to return to work.

The man was awarded over £286,000 in damages, which included a £23,500 award for his pain, suffering and loss of amenity and compensation for lost earnings as a prison officer up to the age of 65.

Contact Damian for advice on handling any disciplinary matter.

Part-Time Workers and Discrimination

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR), which came into force on 1 July 2000, established a minimum standard of fairness for part-timers so that they cannot be treated less favourably than comparable full-time co-workers, unless the treatment is justified on objective grounds.

In British Airways v Pinaud, the Employment Appeal Tribunal (EAT) considered whether a part-time airline worker whose basic annual salary was 50 per cent of that of a full-time crew member but whose contract stated that she had to be available to work for more than half the number of days required of a full-time employee had been subjected to less favourable treatment on account of her part-time status.

Florence Pinaud had worked full-time as a purser for British Airways (BA) until she returned from maternity leave in 2005, at which point she started to work part-time. Full-time staff worked a pattern of six days on and three days off, meaning that they were available for work for 243 days a year and off for 122 days. Part-time staff worked a pattern of 14 days on and 14 days off. They were required to be available to work for ten days during the ’14 days on period’, meaning that they had to be available for 130 days a year – more than half the available days required of a full-time worker. Because flights were allocated according to a system whereby staff could bid, according to personal preference, to work on longer flights, which might result in additional pay, or shorter flights, and staff were also required to carry out ground duties and undergo training, the actual hours worked could fluctuate and there was no clear link between days of availability and hours or even precise days worked. The annual basic salary did not vary with the number of duty hours, however.

Mrs Pinaud claimed that she had suffered less favourable treatment in two ways. Firstly, her contract of employment required her to be available to work for 3.5 per cent more days than a full-time worker. Secondly, she argued that she was regularly required to work more duty hours than her full-time equivalent. BA denied that the part-time pattern constituted less favourable treatment, but if it did it was justified as there was a legitimate aim to provide a workable 50 per cent contract working pattern. Any differences compared with full-time workers were trivial, resulting as they did from the system of bidding for flights, and were a proportionate means of achieving a legitimate aim.

The Employment Tribunal (ET) found that the 8.5 additional days per annum that a part-time worker was required to be available for work constituted a significant period and did amount to less favourable treatment. Whilst it agreed that there was a legitimate objective – i.e. to provide a flexible and predictable part-time shift pattern that worked for both BA and its staff, this was not reviewed at the time it was introduced to assess whether it may be discriminatory. Additionally, the less favourable treatment could have been eliminated by adjusting the salaries of part-time workers in a different way – for example by paying them 53.5 per cent of the full-time salary. Having reached that conclusion, the ET did not go on to consider Mrs Pinaud’s second claim regarding actual hours worked or the statistics produced by BA in evidence.

BA appealed against the ET’s ruling. The EAT upheld the ET’s decision that the term in Mrs Pinaud’s contract regarding availability for work did offend against the PTWR. However, when it came to the question of justification the ET had been wrong to dismiss the statistical evidence presented as irrelevant. Having accepted that the unfavourable treatment complained of was in pursuit of a legitimate aim, the ET was bound to carry out a practical assessment of the impact of that treatment when deciding whether or not it was appropriate and necessary for achieving the stated aim.

BA had argued that the effect of the unfavourable treatment was insignificant as in practical terms a part-time worker was not required to work more hours than her full-time comparator. This argument needed to be addressed. If the treatment had no impact on the amount of work Mrs Pinaud actually did, it was far from clear that an increase in salary as suggested by the ET was an alternative way of achieving the legitimate aim. Such a solution might be out of all proportion to the disparate treatment.

The case was therefore remitted to a fresh ET to consider the question of justification of the requirement as regards available days and a full examination of the second part of Mrs Pinaud’s claim.

Employers are advised to carry out periodic reviews of the contract terms of all categories of worker to ensure that these comply with the law. Contact Damian for advice.

Gender Reassignment Discrimination: Key Points for the Workplace

The Equality Act 2010 makes it unlawful to discriminate against someone or treat them unfairly because of gender reassignment. This guidance contains advice for employers to ensure they comply with the law in this regard. As well as an overview of the specific meaning of this protected characteristic, the guidance suggests ways in which employers can support trans workers and advises on adaptations to assist those undergoing gender reassignment and ways of managing any time off work this requires.

Workplace Support for Parents with Premature or Sick Babies

Each year, 95,000 premature or sick babies are born in the UK. This guidance contains important information for employees and employers on practical issues that can arise when an employee’s baby is born preterm or is born full-term but is unwell, and suggests ways in which employers can support employees in these difficult circumstances. See http://www.acas.org.uk/index.aspx?articleid=6049.

Monitoring of Employee’s Electronic Communications Did Violate His Privacy Rights

In the long-running case of Bărbulescu v Romania, the European Court of Human Rights (ECHR) looked at an employer’s right to examine an employee’s use of office computers for sending personal communications during working hours, in breach of the employer’s internal regulations, and ruled that the monitoring of the electronic communications was reasonable and an acceptable means of ensuring compliance with the rules. That decision has now been overturned by the Grand Chamber of the ECHR.

The case concerned a Romanian man, Mr Bărbulescu, who was employed by a private company as an engineer in charge of sales and, at his employer’s request, had created a Yahoo! Messenger account for the sole purpose of responding to clients’ enquiries. He was aware of his employer’s policy forbidding the use of any office equipment for personal communications and employees had been warned that use of company resources for personal purposes was prohibited after the dismissal of a colleague for breaching the rule.

On 13 July 2007, Mr Bărbulescu was informed that his Yahoo! Messenger account had been monitored and the discovery made that it had been used for private correspondence. He replied in writing that he had only used the account for professional purposes.

His employer then presented him with a 45-page transcript of messages he had sent and received between 5 and 13 July, including all those he had exchanged with his fiancée and brother. Mr Bărbulescu was subsequently dismissed.

He argued without success before the courts in Romania that the monitoring of the account breached domestic law and amounted to a breach of his right to respect for privacy, enshrined in Article 8 of the European Convention on Human Rights.

In rejecting his arguments on appeal, the ECHR found that it was not unreasonable for an employer to verify that workers were devoting themselves to their professional tasks during working hours. Monitoring the account was, in practice, the only means of ensuring Mr Bărbulescu’s compliance with the employer’s explicit policy. No mention had been made during the proceedings of any of the contents of the personal communications, nor was the identity of the recipients made known.

In the ECHR’s view, the level of monitoring was limited in scope and proportionate, and there was nothing to indicate that the Romanian courts had failed to strike a fair balance between Mr Bărbulescu’s right to respect for his private life and his employer’s interests.

Mr Bărbulescu appealed to the Grand Chamber of the ECHR, where the matter was considered by 17 judges, which held by a majority of 11 to six that there had been a violation of Article 8 of the Convention.

The Grand Chamber observed that the domestic courts had failed to determine, in particular, whether Mr Bărbulescu had received prior notice from his employer of the possibility that his communications might be monitored. Nor was account taken of the fact that he had not been told of the extent or the nature of the monitoring, or of the degree of intrusion into his private life and correspondence. Furthermore, they had failed to determine if there were specific reasons to justify the introduction of the monitoring, whether Mr Bărbulescu’s employer could have used measures that involved less intrusion into his private life and correspondence or whether there were safeguards in place to ensure that his communications could not be accessed by his employer without him being notified in advance of that eventuality.

In the light of these findings, the Grand Chamber found that the Romanian courts had failed to protect Mr Bărbulescu’s right to respect for his private life and correspondence and had consequently failed to strike a fair balance between his interests and those of his employer.

Says Damian McCarthy , “Where there is a ban on employees sending personal emails etc., employers should have a written policy making this clear and warning that monitoring may take place. Checks should be carried out in a proportionate manner, and only when there is a clear business reason for doing so. We can assist you in drawing up a policy tailored to the needs of your business.”

Guidance published by the Information Commissioner’s Office, ‘The Employment Practices Code’, contains specific advice on compliance with UK legislation on monitoring electronic communications. This can be found at https://ico.org.uk/media/for-organisations/documents/1064/the_employment_practices_code.pdf.

New Guidance From Acas